Templeton v. Graves

• Decision Date: 11 December 1883
• Citation: 59 Wis. 95,17 N.W. 672
• Parties: TEMPLETON v. GRAVES.
• Court: Wisconsin Supreme Court

59 Wis. 95

17 N.W. 672

TEMPLETON

v.GRAVES.

Supreme Court of Wisconsin.

Filed December 11, 1883.

Appeal from circuit court, Waukesha county.

Action for slander. The slanderous words alleged in the complaint to have been spoken by the defendant to the plaintiff were: “You are a damn thief you broke open a granary last fall and stole my wheat.” In his answer, after a general denial, the defendant alleges by way of mitigation that if he spoke the words charged he did so without malice, and in the heat of passion caused by the fact that the plaintiff, just before he uttered them, had called him a bastard. On the trial the defendant answered his complaint by adding thereto an averment that the words charged to have been spoken by him were true. The cause was tried and resulted in a verdict for the plaintiff, and an assessment of his damages at $2,000. The testimony is sufficiently stated in the opinion. A motion for a new trial was overruled, and judgment for the plaintiff was entered pursuant to the verdict. The defendant appeals from the judgment.D. H. Sumner, for respondent, James Templeton.

W. H. Thomas, P. H Carney, D. W. Small, and J. V. V. Platto, for appellant, William Graves.

LYON, J.

1. The learned and ingenious counsel for the defendant devoted a considerable portion of his argument to an attack on the rule which allows punitory damages to be awarded in any action of tort, and he maintained that this court should overrule all of the cases heretofore adjudicated by it in which such damages were allowed. To this argument it is a sufficient answer to repeat what was said of the rule allowing punitory damages by the late chief justice in Bass v. C. & N. W. Ry. Co. 42 Wis. 654: “The rule was adopted as long ago as 1854, in Williams v. Bragg, 3 Wis. 424, and has been repeatedly affirmed since. It is therefore too late to overturn it by judicial decision. That could well be done now by legislative enactment only.” This was said in 1877, since which time the rule has been often reaffirmed,--notably so in Eviston v. Cramer, 57 Wis. 570; [S. C. 15 N. W. REP. 760.] Counsel says that in the latter case this court went far in the direction of abrogating the rule. The statement is not warranted by anything there said or decided, and must have been made under an entire misapprehension of the case.

2. The only other ground assigned for a reversal of the judgment is that the damages assessed by the jury are excessive, and hence that the motion for a new trial should have been granted for that reason. It is manifest that the jury assessed punitory damages, for the sum assessed is much greater than mere compensatory damages. It is clear that a verdict for $2,000 damages, were the recovery confined to mere compensatory damages, could not be upheld upon the evidence in the case. Punitory damages can only be properly awarded in an action for slander, when it is made to appear that in speaking the slanderous words the defendant was prompted thereto by special ill-will, bad intent, or malevolence towards the plaintiff; that is to say, express malice of the defendant must be proved, or the recovery should be limited to compensation alone. Such malice may be inferred from all the circumstances of the case; indeed, it would ordinarily be very difficult to prove its existence by direct evidence. But it is not to be inferred from the facts alone that the words are false and injurious to the plaintiff, although malice is implied from those facts. Eviston v. Cramer, supra. The precise question to be here determined is, therefore, would the testimony introduced on the trial support a finding that the defendant was prompted by special ill-will or bad intent towards the plaintiff in speaking the words complained of? To answer this question intelligibly a brief statement of what the testimony tends to prove is required. It must be understood that we do not undertake to decide what facts are proved or disproved, but only to state the facts which the jury might have found from the evidence had questions of the existence thereof been speciaily submitted to them.

The testimony shows or tends to show that at the time the slanderous words were spoken the plaintiff was a merchant and postmaster in the town of Lisbon, Waukesha county, and the defendant was a wealthy land-owner in and resident of the same town. They had known each other 25 or 30 years, and were on friendly but not intimate terms. The defendant was inclined to be abusive and quarrelsome, and had many personal difficulties with others. In the fall of 1880 one Schroeder had 125 bushels of wheat in his granary in the same town of Lisbon. September 7th of that year he gave the defendant a bill of sale of 50 bushels thereof, and designated it as “50 bushels winter wheat.” The wheat intended to be conveyed was in the center of the granary, and was white Russian wheat. The defendant received from Schroeder the key of the granary, which he delivered to the wife of the latter to keep for him, but did not remove the wheat. September 29th of the same year Schroeder executed to the plaintiff a bill of sale of 50 bushels of the wheat in the same granary, which bill of sale the plaintiff filed in the proper town clerk's office on the same day. The defendant filed his bill of sale there on October 5th following, and then saw or had actual notice of the plaintiff's bill of sale. Later in the...